Law change required to control Ma

By Yen Chueh-an 顏厥安

The atmosphere of the Oct. 10 Double Ten National Day celebrations was marred this year by protests, as the ongoing political storm stubbornly refuses to blow over.

The public took to the streets to call on President Ma Ying-jeou (馬英九) and Premier Jiang Yi-huah (江宜樺) to step down. Protesters wanted the Referendum Act (公民投票法) amended, railed against the lack of transparency in the cross-strait service trade agreement negotiations, demanded the immediate cessation of construction of the Fourth Nuclear Power Plant and demanded the abolition of the Special Investigation Division (SID) of the Supreme Prosecutors’ Office.

Neither Ma nor Jiang have any political legitimacy left, but their hold on power is being protected by the way the political system is constructed. It would be extremely difficult to impeach or recall the president, although the legislature could have been dissolved had the no-confidence motion against the premier — for which there is a more attainable threshold — succeeded.

The president’s perceived unconstitutional behavior brings up questions regarding the limits of his powers. If the Constitution is unclear on these, legislation needs to be created to establish the limits.

The Constitution contains legislation that governs the seven organs of government. In addition to the Act Governing the Legislative Yuan’s Power (立法院職權行使法), the legislature created rules for the now-defunct National Assembly. The Control Act (監察法) and the Act Governing the Administration of Examination (典試法) essentially limit the powers of the Control Yuan and the Examination Yuan respectively. Judicial powers reside in each court and cannot be governed by legislation.

The situation regarding the Executive Yuan is more complex. Article 53 of the Constitution states: “The Executive Yuan shall be the highest administrative organ of the State.”

However, after the Constitution was amended so the president was chosen in direct elections and given the right to directly appoint the premier, Article 53 was effectively nullified.

The person invested with the powers of commander-in-chief of the armed forces, director of national defense policy, nominator of the premier, issuer of emergency directives, and employer of government ministers and senior military officers must be the head of the “highest administrative organ of the State.” Therefore, the national system of constitutional government is basically a presidential system.

Under the US’ presidential system, the appointment of Cabinet members requires congressional approval, but in Taiwan, the president can unilaterally form his Cabinet. Had the no-confidence motion been passed, the legislature would have been affected more than the president. Had it been dissolved, Ma would have enjoyed more than two months of being able to govern without legislative interference. The so-called “dual executive” semi-presidential system exists only in theory, not in practice.

Recent events demonstrated that there is too much confusion regarding the exact nature of presidential power. There are too few checks and balances to the post. Ma is prepared to abuse the system and eavesdrop on the legislature, and has abused his position as Chinese Nationalist Party (KMT) chairman to try and rid himself of Legislative Speaker Wang Jin-pyng (王金平).